The right to privacy has been recognized since at least 1890 but quantifying the damages caused by its breach continues to be challenging. Minnesota has in place the legal framework for pursuit of privacy claims but its courts have yet to consider the full scope of possible relief available. The Restatement is instructive in this regard.

A breach of a person’s privacy rights causes real harm, often in untold ways. Yet claims stemming from these violations are sometimes perceived as insignificant or lacking sufficient damages to justify adequate relief. This perception may stem from the nature of the privacy right itself. A person whose privacy has been invaded experiences, among other potential injuries, a harm that is intangible and difficult to quantify. Litigants defending these cases can attempt to exploit this circumstance. The effort invariably begins with a cry of damnum absque injuria—no harm, no foul. This assertion gives short shrift to the important interests privacy laws are intended to protect.

The modern legal cause of action for invasion of privacy originated in a famous Harvard Law Review article that Samuel Warren and Louis Brandeis wrote in 1890, referred to as “that most influential law review article of all,”1 entitled “The Right to Privacy.” The article eloquently describes “the right to privacy, as a part of the more general right to the immunity of the person—the right to one’s personality.”2 It ushered in the tort of invasion of privacy, of which four conceptually distinct types are identified and described in the Restatement (Second) of Torts (1977) (“Restatement”). These are (1) intrusion upon seclusion,3 (2) publicity given to private life,4 (3) appropriation of name or likeness,5 and (4) publicity placing person in false light.6 In Lake v. Wal-Mart Stores, Inc.,7 the Minnesota Supreme Court adopted the first three of these—intrusion upon seclusion, appropriation, and publicity given to private life—as defined by the Restatement.8 Minnesota law also provides a variety of statutory privacy protections in such areas as government data (Government Data Practices Act9), health care (Health Records Act10) and the workplace (Drug and Alcohol Testing in the Workplace Act11), among others. The doctrinal framework thus exists in Minnesota law to pursue various kinds of privacy claims.

Unwarranted Encroachment

But given Minnesota’s relatively recent adoption of invasion-of-privacy torts at common law,12 its appellate courts have not yet had the opportunity to consider the full scope of relief afforded in privacy claims, whether of the statutory or common law variety. The time is ripe for this issue to be addressed. Breathtaking advances in technology have multiplied, and continue to multiply, the ways in which our fundamental privacy rights can be undermined. Although many of these innovations improve society, they also enable greater intrusion into legitimate zones of privacy. The law should prevent—and compensate for—unwarranted encroachment in this area.

Reliable legal sources to determine appropriate remedies for breach of privacy are readily available. The Restatement, upon which Minnesota courts have relied to recognize and describe invasion-of-privacy torts, defines the damages available for commission of those torts in Section 652H:

One who has established a cause of action for invasion of privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.13

By allowing recovery of damages for harm to privacy interests, in addition to mental distress and special damages, the Restatement presumes general actual damages for any bona fide invasion-ofprivacy claim. This approach ensures privacy laws can be enforced: An invasion of a person’s privacy rights, by definition, causes harm to the privacy interest of that person. This harm exists separate from any additional harm flowing from the invasion.

In this way, the Restatement recognizes the intangible nature of harm flowing from a breach of privacy. This is an important feature. A breach of privacy will not typically result in physical injury.14 Instead, such claims implicate dignitary interests (in the language of Warren and Brandeis, “the right to be let alone”15) and are often difficult to measure. Yet intangible interests are no less real or less worthy of protection than more tangible ones. Can anyone contend the denial of the right to vote in a democracy creates no harm capable of redress? Or that an action in defamation or slander would not lie against a rumormonger inaccurately implying you are diseased? Privacy interests, not unlike the interests implicated by these examples, protect the dignity of the individual.16 A failure or refusal to fully recognize legitimate privacy interests—for instance, by recognizing a right to privacy, but providing no meaningful way to enforce it—devalues these interests and sets the law on a dangerous path.

Professor Robert C. Post perceived the unique nature of the privacy tort when he observed that “the tort of invasion of privacy is qualitatively different because the injury at issue is logically entailed by, rather than merely contingently caused by, the improper conduct. An intrusion on privacy is intrinsically harmful because it is defined as that which injures social personality.”17 A court that affirms the viability of a privacy cause of action, even when evidence of traditional, quantifiable damage is not available, accounts for intrinsic harm and allows the right to be effectively enforced. This also upholds valuable social norms and advances “civility rules”18 that make life in society tolerable.

Toward a Meaningful Remedy

Minnesota has not yet expressly adopted Section 652H of the Restatement, including its approach to presuming actual damages in privacy cases.19 This would be an appropriate step because Minnesota courts rely on the Restatement to define the substantive aspects of the privacy torts Minnesota recognizes.20 And several Minnesota cases have already referenced Section 652H in the context of privacy claims.21 In Wagner v. Gallup, Inc., the United States District Court for the District of Minnesota, applying Minnesota law, referenced Section 652H in allowing a plaintiff to testify about mental distress damages in an invasion-of-privacy claim involving a former employer’s alleged appropriation of plaintiff’s name and likeness on a website. Similarly, in Montgomery v. The Original Traveling Photo Booth Co., the Hennepin County District Court referenced plaintiffs’ reliance on Section 652H in rejecting the defendant’s claim that plaintiffs suffered no damages from defendant’s Internet posting of inappropriate photos taken during a wedding. Various jurisdictions outside Minnesota also look to the Restatement and have expressly adopted its damages provisions with respect to privacy claims.22

By adopting the Restatement’s approach to damages in privacy cases, Minnesota courts would do away with the fallacy of damnum absque injuria, ratify the principle of intrinsic actual harm, and permit the jury—a body composed of representatives of the community in which the breach occurs—to assign a value to that harm in light of all of the circumstances in which it occurred. Taking privacy seriously in this regard would also help deter misconduct.

Litigation over privacy rights is likely to increase. If these rights are to have real meaning, the law must recognize and contend with their unique features, which include intangible harm. Many privacy claims will not result in easily quantifiable damage, as would a claim for payment of hospital bills. The jury is in the best position to assess the conduct of all the parties, weigh their conflicting views, and, ultimately, assign a value to the harm incurred. The Restatement expressly facilitates that approach by allowing recovery for harm to privacy
interests, as well as for the various potential secondary effects that may flow from a breach, which can also be substantial. By ensuring a meaningful remedy exists for the violation of privacy rights, Minnesota courts would appropriately strengthen those rights.

Robert W. Vaccaro is a partner with Gaskins, Bennett, Birrell, Schupp, L.L.P. in Minneapolis. He practices in the areas of commercial litigation, insurance coverage, and civil rights law.

16 Warren and Brandeis contended that remedies for invasion of privacy are “suggested by those administered in the law of defamation[.]” “The Right to Privacy,” 4 Harv. L. Rev. at 219. These include, but are not limited to, “[a]n action of tort for damages in all cases. Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.” Id. (footnote omitted).

17 Robert C. Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” 77 Cal. L. Rev. 957, 964 (1989) (emphasis in original).